Cerilli v. Malloy et al

Filing 14

ORDER Vacating 8 Order on Motion for Leave to Proceed in forma pauperis and Denying 2 MOTION for Leave to Proceed in forma pauperis filed by Raymond J. Cerilli. All further proceedings in this matter shall be held in abeyance for twenty (20) days pending Cerillis delivery of the filing fee in the amount of $400.00 (cash, bank check or money order made payable to the Clerk of Court) to the Clerks Office, 915 Lafayette Boulevard, Bridgeport, CT 06604. Failure to tender the filing fee within twenty (20) days from the date of this Order will result in the dismissal of this action. Signed by Judge Stefan R. Underhill on 2/10/2017.(Landman, M)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

RAYMOND J. CERILLI,
Plaintiff,
v.
DANNEL P. MALLOY, et al.,
Defendants.

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No. 3:16-cv-2087 (SRU)

ORDER RE AMENDED COMPLANT AND IN FORMA PAUPERIS STATUS
Raymond J. Cerilli, is currently confined at MacDougall-Walker Correctional Institution
in Suffield, Connecticut. On January 17, 2017, I filed an Initial Review Order addressing the
original complaint. I noted that Cerilli currently is precluded from filing any cases in forma
pauperis under 28 U.S.C. § 1915(g), because he has previously had at least three cases or appeals
dismissed as frivolous or for failure to state a claim upon which relief may be granted. See Doc.
# 9, at 2-3. Cerilli was granted in forma pauperis status in this case because he included
allegations that he was suffering serious reactions to his medication and thus under imminent
threat of serious physical injury.
Upon review of the complaint, however, I found that Cerilli failed to include specific
allegations against many defendants and failed to demonstrate how each defendant caused Cerilli
to be in imminent danger of serious physical injury on December 16, 2016, the day he filed the
original complaint. See 28 U.S.C. § 1915(g) (inmate who has had three case dismissed as
frivolous may not proceed in forma pauperis unless the prisoner is under imminent danger of
serious physical injury); Pettus v. Morgenthau, 554 F.3d 293, 297 (2d Cir. 2009)

(“indigent three-strikes prisoner [may] proceed IFP in order to obtain a judicial remedy for an
imminent danger”). I explained that to proceed without prepayment of the filing fee, Cerilli must
allege facts showing that the imminent danger of serious physical injury he alleges is fairly
traceable to unlawful conduct alleged in the complaint, and that a favorable outcome in this case
would redress the injury. See id. at 296–97. Cerilli also must show that the danger of imminent
harm was present at the time he filed the complaint. See id. at 296. I, therefore, directed Cerilli
to file an amended complaint to include specific allegations against each defendant explaining
what actions each defendant took, or failed to take, that caused Cerilli to be in imminent danger
of serious physical harm in December 2016.
Cerilli includes the same nine defendants in his amended complaint: Dr. Valletta, Dr.
Gerbino, Dr. Lawlor, Nurse Tim Bombard, Nurse D. Brown, Dr. Johnny Wu, R. Bush, Governor
Dannel P. Malloy, and Commissioner Semple. Defendants Valletta, Gerbino and Bush work at
Garner Correctional Institution, defendants Lawlor, Bombard and Brown at MacDougall-Walker
Correctional Institution. Cerilli alleges that Drs. Valletta and Gerbino prescribed Elavil for him
in July 2014. Cerilli experienced a reaction to the drug which he describes as blood blisters over
his body. He lost weight, dropping to 220 pounds. After he was transferred to MacDougallWalker Correctional Institution, his weight increased to 270 pounds.
Cerilli complained to Brown that his legs and feet were swollen and painful. In
November 2016, Brown stated that the swelling was the result of water retention. She gave him
anti-embolism stockings and scheduled a doctor appointment. Cerilli continues to experience
swelling to this day. Mental health staff want to prescribe what Cerilli describes as “more fake
mental health drugs.” Doc. # 13, ¶ 8. Dr. Lawlor has stated that Cerilli has no evidence that the
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swelling was caused by Elavil.
Cerilli alleges that he suffers from a drug reaction or allergy. The evidence submitted
shows that he has suffered from this condition since 2014. Despite specific instructions from the
Court, Cerilli has not alleged any facts showing that he now is in imminent danger of serious
physical harm as the result of the actions of any of the defendants. Allegations of pain and
swelling are insufficient to demonstrate an imminent danger of serious physical injury. See
Cerilli v. Murphy, 2010 WL 7865032, at *2 (D. Conn. Aug. 20, 2010) (citing cases). In addition,
long-lasting conditions do not demonstrate an imminent danger of serious physical harm. See
Jackson v. Jin, 2014 WL 1323211, at *3 (W.D.N.Y. Mar. 31, 2014) (condition existing for over
two years insufficient to show imminent danger of serious physical harm).
In conclusion, because Cerilli has failed to allege facts in his amended complaint
demonstrating an imminent danger of serious physical harm, I hereby VACATE the order [Doc.
# 8] granting Cerilli’s motion to proceed in forma pauperis. The motion to proceed in forma
pauperis [Doc. # 2] is DENIED pursuant to 28 U.S.C. § 1915(g). All further proceedings in
this matter shall be held in abeyance for twenty (20) days pending Cerilli’s delivery of the filing
fee in the amount of $400.00 (cash, bank check or money order made payable to the Clerk of
Court) to the Clerk’s Office, 915 Lafayette Boulevard, Bridgeport, CT 06604. Failure to tender
the filing fee within twenty (20) days from the date of this Order will result in the dismissal of
this action.
SO ORDERED this 10th day of February 2017, at Bridgeport, Connecticut.
/s/STEFAN R. UNDERHILL
Stefan R. Underhill
United States District Judge
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